Tag: "foreclosure litigation"

Foreclosure laws vary from state to state, and some states are more in support of lenders than others.

In Texas for example, the time frame for filing a Notice of Trustee Sale is only 21 days prior to the sale, and this is the first public record filing in a non-judicial foreclosure required in Texas.

So also, in Texas the lender is generally not required to “produce the note” in order to show that its claim is legitimate and it has a right to foreclose.

I found this interesting opinion by a Texas law firm who apparently markets its services to lenders who are being challenged by borrowers demands to “produce the note“.

My comment is this:

The “produce the note” strategy is only the surface effect of a much deeper running concern.

Typically, a lender or loan servicer produces photocopies of paperwork that

1. Does NOT mention the lender or loan servicer in any principal role,

2. Does NOT link the lender or loan servicer to a principal role of the note,

3. Does NOT show that the lender or loan servicer is authorized by a principal of the note.

Since the original note has real value as a negotiable instrument in exchange for full payoff, accepting copies of the original is like taking the copy of a personal check that’s executed by someone else.

Nobody in their right mind would do that if they fully understood the procedure – not even in Texas.

Please let me know your opinion or if you’ve had any experiences or challenges that are related.